One Mad Cow Equals Millions of Concerned Consumers
The story of how one sick cow caused an international ban on U.S. beef, plunging beef prices, concern among consumers about the safety of the meat supply, and how the National Agricultural Law Center is helping to shape the aftermath.
A single, sick cow from a Washington state dairy farm has focused public and media attention on the complicated process that brings food from the pasture to the plate. But even before Agriculture Secretary Ann Veneman’s Dec. 24th announcement that the cow was diagnosed with Bovine Spongiform Encephalopathy (BSE), researchers at the National Agricultural Law Center, supported by the University of Arkansas School of Law, were writing articles on laws concerning food safety issues.
Since 1996, evidence has been increasing for a causal relationship between ongoing outbreaks in Europe of a disease in cattle called BSE, or “mad cow disease,” and a disease in humans, called variant Creutzfeldt-Jakob disease (vCJD). Both disorders are fatal brain diseases with incubation periods measured in years and are caused by an unknown transmissible agent. The appearance of BSE in the United States has put food safety in the public spotlight and brought scrutiny to parts of the national food supply chain that have undergone radical changes in the past few decades.
“People are starting to think differently about food,” said Michael Roberts, director of the center and research associate professor of law. “They’re thinking about food and agriculture in more holistic ways than ever before.”
This shift in thinking may be overdue. Long gone are the days when people visited the local butcher, baker and produce seller to purchase food grown within an hour’s journey of the store. Instead, food at today’s supermarket comes from around the globe and has often passed through many hands before it appears in the grocery store aisles. And the change in the food supply has brought with it a host of rules, regulations, laws and other issues that affect farmers, international markets and consumer safety that in some cases have kept up with the times and in other cases have not.
“As a society, we have changed so that the old ways of farming don’t always work anymore,” Roberts said. “The law is responding to these changes. Our job is to equip farmers, agribusiness, the food industry and the lawyers who represent them with the information that they need so they can make informed decisions about the issues.” The center provides information for the full spectrum of players in the agriculture and food sectors, including farmers, ranchers, agribusinesses and food companies. The center staff works closely with policy makers, providing objective and timely agricultural law information and analysis.
The National Agricultural Law Center was established by Congress in 1987 to address the growing complexity of agricultural law. The center’s location in Northwest Arkansas places it among some of the leading food companies in the world, including Tyson Foods Inc. and Wal-Mart Stores Inc.
The researchers who work at the center examine cutting edge legal issues in agriculture and provide a clearing-house of information for lawyers, farmers, producers, processors and anyone else interested in agricultural law. In recent years, the center’s scope has broadened to include the food sector, which includes industries that process, distribute and market food and fiber produced by farmers and ranchers.
Researchers at the center have amassed a large online presence, with “reading rooms” containing articles on subjects ranging from bankruptcy and biotechnology to water quality and wildlife. Christopher Kelley, law professor and former director of the center, said that before the Web, the center relied on free-standing journals to disseminate its research.
“One of the beauties of the Web is that it makes information available for all to see,” Kelley said. “The information is reaching a lot more people.” The features offered on the center’s Web site allow lawyers and researchers to keep up-to-date with the latest cases in different fields, creating almost an “online newspaper” about agricultural law.
“It serves as a nice complement to the graduate program,” Kelley said.
The University of Arkansas offers the only advanced degree in agricultural law in the country, and lawyers seeking to work in fields as diverse as corporate law or environmental law have traveled to Arkansas to seek an LL.M. degree. The center works closely with the graduate program in agricultural law to provide a unique platform for the study of legal issues in agricultural and food law.
“The program got started in the 1980s, when agricultural law was coming to prominence as a discipline,” said Susan Schneider, law professor and director of the graduate program.
The class size varies from year to year, with anywhere from six to 15 students, said Schneider. Some students come straight from law school, but others, like Schneider herself, practice law for a few years before seeking the advanced degree. Students take courses that focus on agricultural law and write a thesis. In addition, the graduate students write case summaries pertaining to agricultural law that are posted on the center’s Web site.
Graduates of the agricultural law program have gone to positions as congressional staff, government leaders, professors and attorneys at law firms, food companies, agribusinesses and advocacy groups.
Although graduates of the program may go on to diverse types of employment, the researchers at the agricultural law center don’t take sides.
“We produce information for those who do take sides,” Roberts said.
Take the Holstein in Washington State, for instance. She was born on a ranch in Canada in 1997 and shipped to the United States in 2001. She lived at a dairy farm in Washington until just prior to slaughter. She was sent to the slaughterhouse on Dec. 9, 2003, where because of her behavior, tissue samples were sent to the USDA’s National Veterinary Services Laboratories in Ames, Iowa.
After that, her carcass was treated like others headed for the market. Workers removed parts of the carcass that could potentially harbor infection, including the brain, spine, hide and guts. Then the carcasses were sprayed with water or lactic acid to clean off any bacteria that might still cling to the meat. USDA agents examine carcasses to look for contaminated tissue or fecal matter. Then the meat was cut, processed, packaged and shipped to retail outlets and restaurants in the U.S. and beyond.
All of these stages are regulated by federal laws that come under the auspices of agencies as diverse as the EPA, the FDA, the USDA, the lesser-known Food Safety and Inspection Service (FSIS) and the Animal and Plant Health Inspection Service (APHIS).
The finding that one cow on a U.S. farm had BSE does not pose an immediate threat to the safety of the food supply, Roberts said. However, it does highlight some of the regulatory issues and legal problems that have yet to be addressed. And any resolution reached will affect everyone along the “food chain:” animals, food producers, food processors, food retail distributors and consumers.
The National Agricultural Law Center publishes research on a vast variety of topics, and the BSE scare happens to have brought many of them to the forefront of the news. These topics include stockyard regulation, international trade, food processing, consumer safety and bankruptcy. The last issue may become paramount for many if the beef industry takes a hit this year.
“This is one issue where you have every farmer sitting around the table talking about it, because it affects their livelihood,” Roberts said.
Farmers and ranchers have already started to feel the pinch. Following the Christmas Eve announcement of the first confirmed case of BSE in the United States other nations banned the import of U.S. beef. Japan, Mexico, South Korea and Canada are among more than 50 nations that have all blocked beef imports, reducing the export market by 90 percent. Exports account for about 10 percent of total U.S. beef production—nearly 26 billion pounds.
Ranchers already struggling to make a living will feel this in their pocketbooks. Keith Collins, chief economist for the USDA, has predicted that retail prices for domestic beef will fall 10 to 15 percent in the second half of this year.
The regulation of food safety and its ramifications are topics that consume much of the center’s time, and they illustrate how agriculture has changed in the past few decades. Roberts has firsthand knowledge of these changes; he grew up on a family-owned produce farm in Davis County, Utah. In later years he worked at a produce brokerage and a grocery store. He received a law degree from the University of Utah in 1989. When he decided to change careers a few years ago, he enrolled in the graduate program at the University of Arkansas for an LL.M. degree in agricultural law in 2001.
Today’s produce is as likely to come from Peru as Peoria, and Roberts’ work has followed suit. He recently took the several-thousand mile trip to visit Peru and toured an asparagus farm in a particularly remote region. Almost every worker he met wanted to know about this American holiday called “Thanksgiving.” It turned out that Thanksgiving is the season of high demand for asparagus in the United States, so during that time the workers spent many hours of overtime harvesting the green stalks to ship to Florida.
“This foreign holiday thousands of miles away has a huge impact upon their lives,” Roberts said. “The world has become much smaller.”
Although technology makes importing and exporting food easy, it raises the likelihood of importing and exporting disease. In November 2003, three people died and more than 600 sickened during an outbreak of hepatitis A believed to be caused by green onions imported from Mexico and sold to a Chi-Chis restaurant in Beaver, Penn. It was the nation’s largest known outbreak of hepatitis A. And in 1996, cities around the United States reported outbreaks of the gastrointestinal parasite cyclospora, which was later traced to raspberries from Guatemala.
In addition to these outbreaks, the food supply remains vulnerable to pathogens like listeria, salmonella and the deadly E. coli O157:H7, all of which have been found in consumer products destined for grocery stores or restaurants in recent years.
Addressing these issues means examining import/export laws, food safety regulations and standards, inspection regulations and a host of other issues and problems, things that have cropped up since the national food supply went from local to global.
In the wake of the discovery of the BSE-infected cow, Roberts and staff attorney Harrison Pittman have written an article about the legal issues surrounding the implementation of a U.S. Animal Identification Program (USAIP). Such a program was already in the planning stages as early as 2002, but the need for it became quite clear as the USDA and other government officials struggled for weeks to trace the history of the BSE-infected cow and other animals from its herd. Agriculture Secretary Ann Veneman recently announced that the plan will be expedited so that its implementation can begin as early as this summer.
Roberts and Pittman cite two areas of legal concern that might surface in any regulation of animal identification; confidentiality and producer liability. Confidentiality concerns center around two subjects: the first, what type of data will be kept; and the second, who will have access to the data. Some producers have expressed concerns that as the USAIP currently is written, it does not sufficiently address these issues. They worry that rivals, the Internal Revenue Service or the Environmental Protection Agency or animal rights activists might gain access to the information.
“Farmers have become more savvy about how policy will affect them,” Roberts said.
The plan calls for each animal to have its own animal identification number, a lot identification number, a premises identification number and the date the animal was seen or located on the premises. The plan also suggests that information on the animal, including species, sex, age or date of birth, should be included when possible.
The current USAIP is vague on the question of who will have access to the data. It says only that state and federal officials will have access to the data when performing duties to maintain the health of the national herd. But it does not specify what federal agencies will have access, nor does it explain how freely the data may be made available to the public.
Farmers also have concerns about liability. If an animal implicated in a disease outbreak is traced back to its original farm, will that farmer be held responsible even if the animal did not pick up the disease at that location?
The proposed identification program does not specifically address the possibility of increased liability for producers, according to Roberts and Pittman. Some suggest that the identification program will not change producer liability. But the researchers point out that with traceability, farmers may be more vulnerable to lawsuits.
The researchers also looked at the concept of “strict liability,” where a product made available to the public is considered unreasonably dangerous. If strict liability applies, farmers or ranchers could be held responsible for the product even if they took measures to ensure the safety of their animals. However, Roberts and Pittman point out that courts across the country seem to vary as to whether or not they will treat a diseased animal as a dangerous product.
Since writing this article in February, Roberts has been invited to speak to agricultural and legal organizations across the country about these issues. He has visited with the Farm Foundation in Kansas City to discuss a white paper to be presented to Congress in April. He will address another producer group in April in Denver to discuss the legal issues addressed in the article.
Although the article addresses confidentiality and liability, Roberts points out that there are other issues that need resolution before an animal identification program can be implemented, including who will pay for it, what government entity will oversee it and whether it will be mandatory or voluntary.
“The law is becoming more complex and varied,” Roberts said.
Roberts is working on an article about legal issues surrounding the writing of laws to regulate recalls of food products. He has spoken to different groups about mandatory versus voluntary recall, and his understanding on the subject will continue to be in demand as these issues come before Congress.
Currently, it’s up to businesses to tell the public when and where contaminated food was sold or served. In the case of the BSE-infected cow in Washington, the USDA at first kept details from Washington and Oregon health and food safety officials, because state laws would have opened the information to the public. Consumer advocate groups call for making recalls mandatory, while businesses say the voluntary recall system already protects consumers. Roberts’ article will address the legal issues involved in creating a mandatory recall system, the components of such a system and how it should be implemented.
The expertise of the National Agricultural Law Center will continue to be sought by people nationwide who need information about the complex issues surrounding agriculture, food and the law. The center continues to expand its influence by working with the law school to create the Food Law Journal, the only journal in the United States that is published by a law school and is devoted to the subject of food law. The journal is supported by the center, and center staff will act as consultants for law school students as they publish the journal. Articles from the journal will be part of the center’s online presence. This work will give law students invaluable experience in researching, writing, editing and publishing.
“Everywhere you look, food’s the topic,” Roberts said. “There’s not another industry that’s as global as food and agriculture.”
A virtual resource
The National Agricultural Law Center is an online research and reference resource for lawyers, producers, food processors, consumers, policy makers and anyone else who has an interest in agricultural and food law issues. The center provides research, information and education as part of its mission.
In addition to Roberts, the center has three full-time staff members. Sally J. Kelley, research professor, is the center librarian. She provides reference resource services for center attorneys and those requesting information through the center. Harrison M. Pittman, research assistant professor of law, is the center staff attorney. He researches, writes and prepares research materials for publication on the center Web site and supervises the graduate assistants in the agricultural law program. Ann B. Winfred, publicity and information specialist, designed and manages the center’s Web site, edits and formats all center publications, and handles the day-to-day business of the center.
The center’s staff has designed and posted reading rooms on their Web site that offer reference resources on topics ranging from bankruptcy to pesticides and from the Clean Water Act to the Packers and Stockyards Act. Each reading room contains an overview of the topic, major statutes, regulations, case law, other important resources and any center publications that have been written on the topic.
The research publications page includes in-depth research articles written on agricultural and food law by center staff members, law professors, legal scholars and practitioners from across the country. On the National AgLaw Reporter section of the Web site, researchers can view current changes to regulations and judicial decisions. In addition, research assistants, graduate assistants and the staff of the center write case summaries of recent judicial developments in agricultural and food law. Again, the topics covered range from biotechnology to wildlife law and everything in between.
The reference desk includes glossaries, information on publications and links to Web sites that contain agricultural statistics. With a few clicks you can find statistics about honey prices, trout farming and peanut stocks and production. The reference desk also offers a gateway to research journals, associations, news sites and popular publication – all dealing with agricultural law.
In its pages, information seekers can find the text, history and analysis of United States farm bills dating back to the Agricultural Adjustment Act of 1938. Researchers also can find Congressional resources, including the Senate and House of Representatives committees on agriculture, the Senate and House agriculture appropriations subcommittees and the current status of agriculture appropriations legislation, and the congressional record dating back to 1999.
The center offers links to other agriculture resources, including the USDA and the FDA, the Agricultural Research Service, the Agriculture Network Information Center, the National Agricultural Library and the American Agricultural Law Association. It also contains a link to the Agricultural Law Center at Drake University School of Law, a partner to the center in numerous collaborative projects.
The Web site is: http://www.nationalaglawcenter.org/